October 7, 2004
BY DAVID EGGERT
LANSING -- The Michigan Supreme Court considered on Wednesday whether it, and not the Legislature, should let residents sue Dow Chemical Co. to force the company to pay the costs of testing for future dioxin-related health problems.
The justices, asking frequent questions over 90 minutes of arguments, considered the case of 173 residents who want the court to recognize medical monitoring as a legal claim in the state.
High levels of dioxin -- a toxin linked to cancer, birth defects and other health problems -- have been found along the Tittabawassee River near Dow's plant in Midland. The lawsuit asks that Dow set up a medical monitoring trust fund to pay for dioxin testing.
Dow told the court that the Legislature, not courts, should decide the issue.
"It is a policy-driven decision," attorney Douglas Kurtenbach said. "It is the Legislature who is the arbiter of public policy."
Justice Clifford Taylor, appearing to agree, said the court typically defers to the Legislature, which has enacted compensation schemes such as no-fault auto insurance, workers compensation and wrongful death claims.
The court isn't equipped to consider medical monitoring because there are major policy questions on how medical monitoring could affect the state's business climate, he said.
"This may have a disastrous effect on Michigan's economy," Taylor said.
But Justice Marilyn Kelly appeared sympathetic to residents who say they only want a chance to continue presenting their case to a lower court.
A Saginaw County Circuit Court judge earlier denied Dow's argument that no monitoring remedy exists in Michigan, saying the plaintiffs should have the chance to prove their case. The Court of Appeals refused to hear Dow's appeal.
"Why should we not step up to the plate?" Kelly asked.
The case is significant because civil law tradition says plaintiffs cannot recover damages unless they suffer a present injury. It has attracted interest from manufacturers who worry medical monitoring could lead to frivolous lawsuits and impose a huge financial burden on companies that pollute the environment.
But Teresa Woody, the plaintiffs' attorney, said it's reasonable that a woman of childbearing age, for example, should be able to check for abnormal levels of thyroid hormones possibly caused by dioxin. Normal levels are critical to fetal development.
She said many health insurers do not cover monitoring for dioxin-related illnesses.
Dioxin is an ingredient in Agent Orange and a by-product of Dow manufacturing and incineration practices dating back 100 years.
The court will release a decision no later than the end of July 2005.
For additional articles like this one, go to the Tittabawasse River Watch web site www.trwnews.net for complete coverage of the Tittabawassee River Dow Chemical dioxin contamination saga. . The Newspaper / Media page of our site contains an extensive archive of media articles dating back to January 2002. The source organization's web site link is listed to the right of the article, visit often for other news in our area. The Newspaper / Media page may be accessed by scrolling down to the bottom of the CONTENTS section and clicking on the Newspaper/Media link.